The State Vs. Mofizuddin and others

Appellate Division Cases

(Criminal)

PARTIES

The State ———————————————–Petitioner

Vs

Mofizuddin and others——————————- Respondents.

JUSTICE

Md. Ruhul Amin, J

Md. Fazlul Karim, J .

M.M. Ruhul Amin, J

Md.Tafazzul Islam, J

Amirul Kabir Chowdhury. J

Date of Judgment

28 November 2005

The Penal Code (XLV of 1860), Section 396.

At the time of hearing the learned Deputy Attorney General frankly submits that there is practically no legal evidence in this case excepting the confessional statement of condemned prisoner Mafizuddin and his conviction could be based on his confession as the same is voluntary and true. He also submits that the confessional statement of co-accused cannot be the basis of conviction against other accused in the absence of substantive evidence (7)

It is on record that the accused Mafizuddin was arrested on 22.08.1997 and he was produced before the recording Magistrate on 24.08.1997 and there is no explanation for

delay in producing the condemned prisoner Mafizuddin before the recording Magistrate within the specified time. (8)

The High Court Division further opined that it is unsafe to rely on such confessional statement to convict accused Mafizuddin since same has been recorded after detaining him in police custody beyond the period permitted by law. The High Court Division has rightly held that the confessional statement of accused Mafizuddin is not true and voluntary (9)

ADVOCATES

Abdur Rouf, Deputy Attorney General instructed by Ahsan Ullah Patwary, Advocate -on-Record For the Petitioner Abu Siddique, Advocate-on-Record..Respondent No. 3 Not Respondent Respondent Nos. 12,4-6

JUDGMENT

1. M. M. Ruhul Amin J:- This petition for leave to appeal is directed against the judgment

and order dated 15.02.2004 passed by a Death Reference No. 40 of 2001 and Criminal Appeal No. 3428 of 2001, 5469 of 2001 & 2093 of 1991, rejecting the death reference and allowing all the appeals including jail appeal and thereby acquitting the respondents.

2. Prosecution case, in brief, is that on the night following 29.03.1997 after 11.00 P.M. the accused persons being armed with deadly weapons such as pipegun, kiris, dagger, iron rod etc. entered into Brahmanbaria Head post Office breaking grill of a window and killing night guard Abdul Mannan and treasurer Abdul Kalam Azad and looted away cash money of Tk. 2,64,290/- in total breaking open the iron safe. In the morning the informant and others finding the grill of the window and iron safes broken, cash kept in

the iron safes broken and the dead bodies of night guard, Abdul Mannan and treasurer Abdul Kalam Azad lying in the delivery room could understand that the dacoits looted away  cash from the post office killing those two staffs on duty there. The informant then

lodged First Information Report at Brahmanbaria Police Station without naming any accused. During investigation police recovered from the place of occurrence a moneybag containing a scrap of paper where name and address of absconding convict Kazi Tipu Sultan with some telephone numbers was written. During investigation condemned prisoner Miafizuddin made confessional statement, Police on completion of investiga_. tion submitted charge sheet against the condemned prisoners and absconding convict Kazi Tipu Sultan. During trial charge was framed against accused persons under section 396 of the Penal Code. The accused persons pleaded not guilty and claimed to be tried. The defence plea was that the confessional statement of Mafizuddin was neither voluntary nor true and the same was extracted by the police inhumanly torturing him keeping in unlawful police custody.

3. The prosecution in this case examined 14 witnesses and the defendant did not examine any witness.

4.The trial court upon consideration of the materials on record mainly on the confessional statement of accused Mafizuddin convicted and sentenced all the accused persons under section 396 of the Penal Code and sentenced each of them to death. The trial court also made reference under section 374 of the Code of Criminal Procedure for confirmation of the sentence of death and the condemned prisoners also preferred criminal appeal as aforesaid.

5. The High Court Division on consideration of the materials on record found that it is case of no evidence and the judgment and order of the conviction and sentence of accused Mafizuddin is not based on legal evidence. The High Court Division further held that the accused Mafizuddin in his confessional statement did not implicate absconding convict Kazi Tipu Sultan and the other accused, namely, Mainuddin Ahmed Dulal, Habibur Rahman, Mainul Islam and Dewan Rasul Sanam but they were convicted on the basis of confessional statement of co-accused Mafizuddin without any corroboration by any other evidence. The High Court Division also found that the confessional statement of accused Mafizuddin was not true and voluntary as he was not produced before the Magistrate who recorded the confessional statement within reasonable time after his arrest and the manner of occurrence as given in the confessional statement is not consistent with the evidence of other prosecution witnesses.

6. We have heard Mr. Abdur Rouf, the learned Deputy Attorney General for the state petitioner and perused the judgment of the High Court Division and other connected papers.

7. At the time of hearing the learned Deputy Attorney General frankly submits that there is practically no legal evidence in this case excepting the confessional statement of condemned prisoner Mafizuddin and his conviction could be based on his confession as the same is voluntary and true. He also submits that the confessional statement of co-accused cannot be the basis of conviction against other accused in the absence of substantive evidence.

8. It is on record that the accused Mafizuddin was arrested on 22.08.1997 and he was produced before the recording Magistrate on 24.08.1997 and there is no explanation for delay in producing the condemned prisoner Mafizuddin before the recording Magistrate within the specified time.

9. The High Court Division further opined that it is unsafe to rely on such confessional statement to convict accused Mafizuddin since same has been recorded after detaining him in police custody beyond the period per-Appellate Division Cases mitted by law. The High Court Division has (Criminal) rightly held that the confessional statement of accused Mafizuddin is not true and voluntary.

10. In our view, the High Court Davison upon proper and correct assessment of the materials on record arrieved at a correct decision ans there is no cogent reason to interdere with the same.

Accordingly, the petition is dismissed.

Source: III ADC (2006) 840

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